Neutral Citation: 1995 ONICDRG 161

File No.: A-006174

ONTARIO INSURANCE COMMISSION

BETWEEN:

SHARRON M. CRANER

Applicant

and

PILOT INSURANCE COMPANY

Insurer

DECISION

The Applicant, Sharron M. Craner, was injured in a motor vehicle accident on December 12, 1991. She applied for and received statutory accident benefits from the Insurer, payable under Ontario Regulation 672¹. Weekly benefits were paid until May 12, 1993, when they were terminated by the Insurer. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Is the Applicant entitled to ongoing weekly benefits under section 13 of the Schedule after May 12, 1993?

2. Is the Applicant entitled to reimbursement of her prescription expenses and payment for the services of an occupational therapist after December 12, 1994, under section 6 of the Schedule?

3. Is the Applicant entitled to a special award, under section 282(10) of the Act?

The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.

Result:

1. The Applicant is entitled to weekly benefits until December 12, 1994, with interest under section 24 of the Schedule.

2. I have no jurisdiction to determine the Applicant's entitlement to medical and rehabilitation benefits.

3. The Applicant is not entitled to a special award.

The Applicant is entitled to her expenses incurred in the arbitration.

Hearing:

The hearing was held in Chatham, Ontario, on January 30 and 31, 1995, before me, Nancy Makepeace, Arbitrator.

Present at the hearing:

Applicant:

Sharron M. Craner

Applicant's Representative:

Jerry O'Brien

Barrister and Solicitor

Insurer's Representative:

Grant Black

Barrister and Solicitor

Grace Pang

Barrister and Solicitor

Witnesses:

Sandra Craner, the Applicant's daughter

Sharron Craner, the Applicant

John Craner, the Applicant's husband

Ann Fitzhenry Bedard, occupational therapist

Susan Andich, rehabilitation counsellor, Westminster

Rehabilitation Management

Exhibits:

Exhibits and other documents before the Arbitrator are listed in an Appendix to this decision.

The issues in dispute:

In his opening statement on behalf of the Applicant, Mr. O'Brien submitted that the Applicant is entitled to reimbursement of her medication expenses, and ongoing occupational therapy with Ann Bedard. On behalf of the Insurer, Mr. Grant submitted that the Applicant should not be allowed to raise these issues now, since she had not raised them previously, either at the pre-hearing conference or at mediation.

I accept the submissions of the Insurer's counsel that these issues were not properly brought before me, and I have no jurisdiction to determine them².

The Applicant also claimed a special award on the ground that the Insurer unreasonably denied these benefits. An arbitrator's power to order a special award is set out in section 282(10) of the Act, which is as follows:

(10) If the arbitrator finds that an insurer has unreasonably withheld or delayed payments, the arbitrator, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, shall award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule. [emphasis added]

In my view, I have no jurisdiction to order a special award in respect of medical and rehabilitation benefits, given my ruling that entitlement to those benefits is not an issue before me.

Entitlement to weekly benefits:

The Applicant is entitled to weekly benefits if, as a result of the accident, she is substantially unable to perform the essential tasks in which she would normally engage³. After 156 weeks, the Applicant must establish that her accident-related injuries continuously prevent her from engaging in substantially all of the activities in which she would normally engage⁴. This is a more stringent test.

Essential tasks:

The Applicant is a fifty-year old homemaker, and the mother of three grown children; a fourth child died in a car accident about ten years ago. She and her husband, John Craner, live in a two-storey house in Blenheim, Ontario. Mr. Craner works full-time delivering bulk propane.

Mrs. Craner completed Grade 10, and trained as a nurse's aide. She worked in a nursing home before her marriage. After her marriage, she worked for a time as a Red Cross homemaker. She has also worked as a seamstress out of her home. She testified that she also made crafts, and looked after other people's children in her home. Between April 3 and May 24, 1989, the Applicant worked as a nurse's aide at a nursing home⁵. She has not had paid employment since then.

The phrase "essential tasks" has been discussed in many arbitration decisions. The following general principles have emerged:

• Determining the Applicant's essential tasks is to some extent a subjective inquiry:

"It requires an individualized inquiry into the circumstances of the particular applicant, in order to identify the activities of daily living prior to the accident and compare them with the post-accident activities."⁶

• "However, this subjective inquiry cannot ignore the objective parameters of the words used in the section."⁷

• Not every "activity" is a "task." A "task" involves "an element of commitment, a sense of purpose or responsibility to oneself, one's community or dependants."⁸

• Not every task is an "essential" task. "Essential" means "basic," "necessary," or "fundamental."

• The "essential tasks" to which section 13 applies are those in which an insured person would "normally" engage before the accident. Several arbitration decisions have held that "the word 'normally' suggests a usual or regular pattern of activity."⁹

I heard evidence about the Applicant's pre-accident activities from the Applicant, as well as her husband, John Craner, and her daughter, Sandra Craner.

I find that the Applicant's essential tasks included:

• self-care: sleeping, dressing, personal hygiene

• housework: sweeping, washing and vacuuming the floors; cleaning the bathroom fixtures; making the bed; dusting; washing the dishes, kitchen counters and kitchen appliances; doing laundry; shopping for groceries and other necessities; preparing meals; cleaning the windows; and other seasonal household tasks

• canning: canning fruit and tomatoes, and preparing chili and pickles, every fall

• attending church

• sewing, knitting and crocheting

• volunteering with the Victorian Order of Nurses ("VON") about twice a month

• taking care of her granddaughter eight hours a week

The Applicant testified that before the accident she spent many hours sewing, knitting and crocheting. She testified that she sometimes sewed 12-14 hours a day, was "a terrific tailor" and used to make wedding dresses, her husband's suits, her children's clothes, and clothes for friends and neighbours. A sewing room had been built for her in the basement. The Applicant's testimony about her skills and the time she spent in needlework was corroborated by her daughter and her husband. While Sandra Craner and John Craner are not disinterested witnesses, they gave their evidence spontaneously and in persuasive detail. The Applicant's needlework provided clothing for her family, a little extra money, and a satisfying avocation for her. I find that the Applicant's essential tasks included her needlework.

The Applicant also testified that she volunteered about twice a month for the VON to attend "night vigils" with dying people. The Insurer submitted that this was not an "essential task" because there was no element of commitment or obligation. The Insurer relied on the Lui decision, in which Arbitrator Janice Mackintosh found that the applicant's volunteer work was not an essential task because it occurred on an informal and ad hoc basis, and the applicant had no obligation to participate.

Arbitrator Mackintosh recognized the "value and social importance" of volunteer work. I agree with her that the words "essential tasks" "import an element of commitment, a sense of purpose or responsibility to oneself, one's community or dependants." In my view, volunteer work can involve a sense of commitment to oneself and the community, just as paid employment does. It can also give a similar feeling of pride and achievement. Assessing the importance of an applicant's volunteer work requires an individualized enquiry into the circumstances of the particular case. In this case, I place significance on the fact that the Applicant’s work with the VON made use of her training and experience as a nurse's aide. I also find it significant that the Applicant performed this work on a regular basis. I accept that this work was part of the Applicant’s essential tasks.

The Applicant testified that she visited her daughter, Sandra, and granddaughter, Jessica, every day, cared for Jessica when Sandra was busy, and helped Sandra with her housework. She babysat Jessica about eight hours a week while Sandra worked. The Insurer submitted that these were primarily social activities, and were not essential tasks. The Insurer relied on the decisions of Arbitrator Mackintosh in Lui and Cowie. However, these decisions clearly rested on their facts. Although caring for grandchildren undoubtedly has a significant social and recreational element, I accept that it may also be an "essential task" in which an insured person normally engaged before the accident. In this case, Sandra Craner had part-time paid work, and Jessica had a seizure problem requiring constant monitoring, which the Applicant provided. I find that the Applicant's activities caring for her granddaughter were essential tasks in which she would normally engage. However, I do not accept that doing Sandra's housework was an essential task for the Applicant. I have the impression that the Applicant merely helped her daughter out with small household tasks as a favour during their visits.

The Applicant testified that she visited her grandmother about twice a week. She admitted that her grandmother was in good health and lived in her own home at the time. She testified that she "didn't do anything for her" and they had tea and cookies. I find that this activity was primarily social, and was not an essential task.

The Applicant also testified about gardening, painting and wallpapering at her own home and at Sandra's home, and preparing meals for her children and grandchildren at family get-togethers. I find that these activities occurred on an irregular or infrequent basis, and did not include an element of commitment or obligation. I do not accept that these activities were among the essential tasks in which the Applicant would normally engage.

I find that the Applicant's essential tasks involved standing, sitting, driving, and a moderate amount of bending, stooping, reaching, lifting, and carrying.

Pre-accident medical condition:

The Applicant had a long history of neck pain, back pain and headaches before the accident. She testified that she has had a bad back since a fall down a flight of stairs about twenty years ago. The clinical notes and records of her chiropractors indicate that she has had a number of falls¹⁰. She was treated by Dr. R.M. McLauchlin, a chiropractor, about 30 times between 1973 and 1988 for headaches, neck pain, and low back pain. She also began seeing Dr. J.J. Lemak, another chiropractor, in 1983.

The Applicant worked as a nurse's aide at Blenheim Community Village between April 3, 1989 and May 24, 1989¹¹. She testified that she resigned this position because she was having trouble lifting as a result of right shoulder problems, and she almost dropped a patient. She returned to Dr. McLauchlin for several visits, but he did not see her after May 1989¹². Dr. Lemak's notes indicate that he also treated the Applicant for the right shoulder, but she felt better by the summer¹³.

On August 13, 1990, the Applicant suffered neck and low back pain after the car in which she and her husband were driving was rear-ended. She did not attend at a hospital, but saw her family doctor, Dr. A. MacDonald, the same day, complaining of "aching from neck to tailbone."¹⁴ Prescriptions for Tylenol 3, Elavil and Voltaren were continued.

In a questionnaire the Applicant filled out for Dr. Lemak the day after the August 13, 1990 accident, she reported neck and low back pain and stiffness, shoulder pain, headaches, chest pain, fatigue, irritability, and sleep difficulties. She said she had given up heavy housework as a result of the accident.

A month later, she told Dr. MacDonald that she was unable to vacuum and had "excruciating pain" at night. About this time, the Applicant began seeing Philip Rance, a physiotherapist, for mid and low back pain.

The Applicant testified that by December 1991, she had recovered from the August 1990 accident, had stopped using analgesic medications several months earlier, and was able to perform her essential tasks. She admitted only to having difficulty "sometimes" lifting the "fairly heavy" vacuum cleaner upstairs, bending over the bathtub, and bending to clean the oven. Sandra Craner testified that before the accident, she observed her mother washing dishes, vacuuming, mopping, sweeping, and preparing meals at family get-togethers. John Craner testified that the Applicant was solely responsible for the housework, and he only helped her move a sofa or bed if she asked. However, he admitted that because of her previous accidents, she became sore if she "overdid it," and she was still not "up to par" in December 1991.

The Applicant’s testimony about her pre-accident condition is also corroborated by the clinical notes and records of her family doctor, chiropractor, and physiotherapist. Dr. MacDonald's notes indicate that the Applicant’s back problems eased in early 1991. The last 1991 entry, on August 9, also notes that the Applicant was "off codeine" (Tylenol 3) and was now taking only Elavil.¹⁵ After her August 14, 1990 visit with Dr. Lemak, the Applicant saw him five more times in late 1990, and her last visit was on October 3, 1991, about two months before the accident at issue in this case. The Applicant attended physiotherapy until May 1991, when she purchased a TENS unit. After two follow-up visits, she was discharged in July 2, 1991, some five months before the December 1991 accident.¹⁶

Given the Applicant's long history of back problems, I think it likely that she continued to suffer significant symptoms in December 1991. However, I accept that her back problems had improved enough by that time that she was able to greatly reduce her medication intake and her doctors' visits. I find that she was not substantially disabled from engaging in her essential tasks in the months immediately prior to the December 1991 accident.

The accident and initial treatment:

The Applicant testified that at the time of the accident, she was in the back seat of the car, sitting behind her daughter, Sandra, who was driving. Her granddaughter, Jessica, was sitting beside her. The Applicant wore a lap-belt. The accident occurred when the Craner car, travelling through an intersection on a green light, collided with a car making a left turn. The Applicant remembers Sandra screaming, "I 'm going to hit him," then the crunch of metal and a sudden stop. She feels she lost her vision momentarily. Her back hurt. She stayed in the car until an ambulance attendant got her out and put her on a stretcher board. The Ambulance Report states that she complained of back and neck pain, shortness of breath, abdominal pain, and right-sided extremities pain.¹⁷

A photograph of the car shows extensive damage to the front end, especially on the passenger side.¹⁸ Sandra Craner testified that the car was a write-off.

All three occupants of the car were taken to the St. Joseph's Hospital emergency department. Sandra Craner and her daughter were admitted overnight. The Applicant's x-rays were essentially negative. She was given a soft cervical collar. She had good range of movement of the right hand and foot, although both were bruised and sore. Her forehead was abraded. She had chest pain, and a cracked rib was suspected; she was given a rib tensor bandage. She continued to complain of sharp abdominal pain and was suspected to have an abdominal bleed. A laparotomy revealed a traumatic perforated bowel and mesentery¹⁹, which were surgically repaired the same day. The surgery involved resection of the bowel as well as an appendectomy. The Applicant was discharged home on December 20, but readmitted two days later with recurrent abdominal complaints. She was finally discharged on December 24.

Her right hand and right foot were bruised and sore, but they healed in about six weeks. Because of her sore chest, and rib injury, the Applicant wore a rib tensor bandage for about a month; she testified that the rib cleared up after about a year. The Applicant complains of constant low back pain and less severe neck pain. She claims that she rarely has a good day with her back, and remains disabled from performing her pre-accident activities. She also suffers from recurrent migraine-type headaches, and has difficulty sleeping. She reports bowel problems and urinary incontinence which she alleges are related to the accident. By February 1993, when the Applicant first met with Susan Andich, she stated that her abdominal symptoms no longer affected her daily routine.

The Applicant also complains of ongoing memory and cognitive problems. She can't remember phone numbers or events in her children's lives, forgets when to take her medication, and forgets that she has put something on the stove. She also reports word retrieval problems, and problems organizing her time and planning tasks like cooking, sewing, or banking. She reports that her senses of smell and taste are diminished. On several occasions she has left pots or pans on the stove, and failed to notice when a fire started.

Disability:

After her discharge from the hospital, the Applicant saw her family doctor, Dr. MacDonald, on January 7, 1992, complaining of abdominal pain, headaches, memory loss, right foot pain, and exacerbation of her back pain. Dr. MacDonald prescribed Tylenol 3, recommended physiotherapy, and stated that the Applicant needed housekeeping assistance twice a week. The Applicant saw physiotherapist Philip Rance five times, but quit because it was "exhausting"; she was discharged at the end of January.

The Insurer began providing housekeeping services through "Molly Maid" (a company which employs housekeepers) once a week in January 1992. According to the Applicant, the housekeeper did everything but dishes, laundry, and bed-making. Because John Craner was working, he drove the Applicant to their daughter's house every week-day morning for about a month and a half after she was discharged from the hospital, so that Sandra could look after her mother. Sandra Craner testified that her mother spent most of her time sleeping on the couch, and could do little more than get herself to the bathroom. She continued to seem confused and to have difficulty finding the right words.

After this initial period, Sandra Craner came to the Applicant’s home every day, and cared for her there. This continued until about October 1992, when Sandra Craner met her future husband. During this period, Sandra testified that the Applicant could not stand for long, could not sit on hard chairs, and spent most of her time on the couch. She did no housework. It was done by John Craner and the housekeeper, and Sandra helped a little. Sandra Craner testified that she observed the housekeeper dusting, sweeping, vacuuming, washing the floors, cleaning the bathroom, and doing other heavy work. Sandra helped her mother prepare meals. She also retaught her mother how to cook. According to Sandra Craner, her mother continued to seem confused and to have memory problems.

The Applicant returned to Dr. Lemak, her chiropractor, on May 29, 1992²⁰, complaining of ongoing neck pain and stiffness, headache, tinnitus, memory loss, tiredness, irritability, back pain, trouble sleeping, trouble driving, bowel problems, and inability to work. In response to a multiple choice question, she estimated that she had recovered between 10 and 25% since the accident. The Applicant continued to see Dr. Lemak regularly until August 1993.

On June 5, 1992, the Applicant saw Dr. Yvonne M. Archibald, a psychologist, for a neuropsychological assessment. She complained of flashbacks and night sweats (for about six weeks after the accident), and ongoing symptoms of poor sleep, word retrieval problems, poor memory and concentration, and fear of riding in a car as a driver or passenger. In their discussions with Dr. Archibald, the Applicant's husband and daughter confirmed these complaints, and added that the Applicant was irritable and "paranoid." According to Dr. Archibald, testing suggested dysfunction in the right hemisphere, primarily the right temporal lobe, although the left temporal lobe might also be implicated. Dr. Archibald recommended that the Applicant be retested in about 18 months, since further recovery was expected. This appears not to have been done.²¹

The Insurer retained Susan Andich, a rehabilitation counsellor with Westminster Rehabilitation Management, in early 1993²².

The Applicant challenged Ms. Andich's qualifications as a rehabilitation expert. Ms. Andich's curriculum vitae is found at Exhibit 14. She has been employed as a rehabilitation counsellor with Westminster Rehabilitation Management since March 1992. Her previous experience includes working with developmentally challenged adults, candidates for parole, and psychiatric patients. She has a Bachelor's degree, with a psychology major and sociology minor. She has no training in physiotherapy or occupational therapy, and could identify no specific courses oriented to rehabilitation, although she testified that she received extensive on-the-job training and close supervision at Westminster. Ms. Andich is a member of the Canadian Association of Rehabilitation Personnel, but I heard no evidence as to the role of this organization or the requirements for membership. On cross-examination by the Applicant's counsel, Ms. Andich testified that her assessment of the Applicant involved gathering information from the Applicant and her family doctor, and passing it on to the appropriate referrals. She did not test or assess the Applicant's abilities. I ruled that Ms. Andich could not offer opinion evidence as a rehabilitation expert; however, she gave direct evidence at the hearing.

Ms. Andich met with the Applicant in her home on February 17, 1993.²³ In her report, Ms. Andich stated that the Applicant told her she had:

resumed the majority of her daily activities, including bed making, cooking, dishes, and laundry. The client further stated that although she is physically capable of cleaning the sinks, counters, appliances, and dusting, she generally does not attempt said activities as they are completed by Molly Maid once per week. Mrs. Craner stated that the primary activities she continues to be unable to complete are sweeping and washing the floor, cleaning the bathtub, and vacuuming.

I accept the Applicant's submission that this report is misleading. The Applicant testified that when she told Ms. Andich she could not complete certain activities, Ms. Andich asked whether she could do so if the (Molly Maid) housekeeper were unavailable; the Applicant responded that she "would have to," since the work had to be done. Ms. Andich admitted on cross-examination that her questions took this form. Further, Ms. Andich did not ask the Applicant to compare her daily activities before and after the accident, but asked her only what she was doing at that time. The focus of the interview was to determine whether the Applicant still needed housekeeping help; Ms. Andich concluded that she did. Ms. Andich also did not ask the Applicant how she was doing her chores, whether she needed to rest frequently while doing them, or how long she could work each day. Ms. Andich's notes of the meeting include some significant qualifications to the Applicant’s reported activity level, which were not included in Ms. Andich's report to the Insurer²⁴.

Ms. Andich met with the Applicant and Dr. Avril MacDonald, the Applicant's family doctor, on March 2, 1993.²⁵ In her confirmation letter, Ms. Andich included the following comments:

The caseworker inquired if Mrs. Craner's present cognitive/memory problems are likely due to the motor vehicle accident or are a result of the excessive use of medication. Dr. MacDonald stated that although the problem may be partially due to medication, Mrs. Craner did sustain a mild head injury in the motor vehicle accident. As a result, Dr. MacDonald stated that the origin of the memory problems is difficult to confirm at this time. However, Dr. MacDonald stated that a neuro/psych assessment by Dr. Archibald in London identified a degree of cognitive impairment which may be related to the M.V.A.²⁶

In response, Dr. MacDonald made several significant amendments to this paragraph²⁷. She deleted the word "mild" before "head injury" in the fourth line. She replaced the third sentence with "[t]he ongoing contributors to her memory dysfunction is [sic] difficult to confirm at this time." In the last sentence, she replaced "may be" with "is." In cross-examination, Ms. Andich agreed that these amendments are significant. I find that Dr. MacDonald believed that the Applicant suffered a head injury in the accident, and did not accept Ms. Andich's suggestion, in her March 3, 1993 letter, that the Applicant's cognitive problems are due to her overuse of medication. In any event, I find that the Applicant had substantially reduced her medication intake by the time of the accident and it was because of the accident that she increased her medication.

On Dr. MacDonald's recommendation, and with the Insurer’s approval, Ms. Andich set up a May 5, 1993 appointment with Dr. Michel Lacerte, a physiatrist²⁸. In her April 15, 1993 report to the Insurer, Ms. Andich indicated that in a telephone conversation that day "the client did not clarify her daily activity routine," but stated only that she cooks, although she has problems doing so, and has good and bad days. Ms. Andich appears not to have asked the Applicant about her many other routine housekeeping chores.

On April 29, 1993, the Insurer advised Ms. Andich to cancel the appointment with Dr. Lacerte, despite Ms. Andich's advice that Dr. MacDonald had not released the Applicant to her pre-accident status²⁹. The Insurer terminated the Applicant's weekly benefits effective May 12, 1993. The Insurer continued to provide housekeeping services, to be reassessed in three months³⁰.

The Insurer decided to terminate the Applicant's weekly benefits and rehabilitation program without the support of any medical expert and despite the disagreement of Ms. Andich, who had been retained by the Insurer. I have the impression that the Insurer relied on Ms. Andich's second-hand reports about the Applicant's activity level. In my view, the Insurer should not have relied on this information alone to terminate benefits without further investigation, at least to the extent of contacting the Applicant or her doctors for confirmation of her functional and medical status. In any event, I find that Ms. Andich's reports were misleading, in that they understated the Applicant's difficulties in completing her chores.

On September 16, 1993, Dr. W.M. Franks, a physiatrist who specializes in neurological rehabilitation of acquired brain damage patients, examined the Applicant at the request of her lawyer. Dr. Franks accepted that the Applicant had suffered a mild traumatic frontal brain injury, given the "considerable forces" involved in the accident, the bruising and swelling of the Applicant’s forehead, the Applicant’s report of visual disturbances and possible loss of consciousness at the time of the accident, and the Applicant’s subsequent memory and cognitive problems. Dr. Franks recommended that MRI and SPECT studies be done. He also recommended that the Applicant receive anti-migraine medication, cognitive remediation therapy, and psychotherapy, and that a caseworker be appointed. He did not find any sign of emotional overlay³¹.

On November 17, 1993, the Applicant was examined by Dr. Lacerte at the Insurer's request³². Dr. Lacerte recommended a number of consultations. He offered no opinion about the Applicant’s ability to complete her pre-accident activities, although he stated that he found no evidence of cognitive or memory problems in his four hour interview with the Applicant.

At the request of the Insurer, Dr. Lacerte's report was reviewed by Dr. John H. Kreeft, a neurologist, and the Director of the Headache Clinic at the Victoria Hospital in London³³. Dr. Kreeft advised that it was "doubtful" he could treat the Applicant, given that she had been having headaches for over two years, had tried flunarizine with little benefit, has memory problems which might be aggravated by other medications, had neck and back pain for 20 years before the accident, and uses Flexoril and Tylenol daily, which can cause rebound headaches.

The Applicant's cardiac stress test, on March 16, 1994, was negat ive³⁴. The Applicant saw Dr. R.L. Goodacre, a gastroenterologist, on February 10, 1994. He suggested that her gastrointestinal symptoms were probably related to an underlying irritable bowel syndrome³⁵.

The Applicant began seeing Ann Fitzhenry Bedard, an occupational therapist in private practice, in June 1994, with the approval of Dr. Franks. Ms. Bedard assessed the Applicant in two two-hour sessions in her home. She concluded that:

Mrs. Craner continues to experience some functional cognitive difficulties 2 1/2 years post injury. Specific problems were noted with maintaining concentration, visual reasoning, organizational and problem-solving skills, and following complex directions.

Ms. Bedard reported that the Applicant had problems planning and organizing needlework projects and other tasks, directing her finances, and scheduling her day³⁶. Commenting on Ms. Andich's report, Ms. Bedard testified that the Applicant could do each of the described tasks considered separately, but she had difficulty initiating, planning and managing them as a whole, because of cognitive problems, pain and fatigue. According to Ms. Bedard, the Applicant's cognitive problems are characteristic of acquired brain injury and differ from the occasional errors and memory lapses that everyone experiences; in addition, the Applicant cannot compensate as effectively as a result of her injuries.

Ms. Bedard began seeing the Applicant in her home for weekly sessions³⁷. She testified that at the beginning, the Applicant was exercising on a treadmill, but did not have energy to do anything else; the housekeeper was "doing everything." Ms. Bedard helped the Applicant set realistic goals, schedule her time, organize her finances and personal papers, and plan her household chores. She started the Applicant with 10 minutes of activity, at different times of the day. At first, the Applicant was unable to do even this on some days. Eventually, by organizing her home, and simplifying, organizing and pacing her work, the Applicant was able to increase her total daily activity to two hours. However, Ms. Bedard believed that the Applicant never reached the point where she could work more than 15 minutes at once. Ms. Bedard interrupted the sessions at the end of June 1994. She testified that when they resumed in late September, the Applicant had regressed and could only work 10 minutes a day. With regular therapy, the Applicant was able to return to her former level.

In her final report³⁸, Ms. Bedard stated that the Applicant was reporting no further difficulty organizing her finances and personal papers. With regard to housework, Ms. Bedard made the following report:

Mrs. Craner was successful in following through with the goals set for the summer, and was able to gradually tidy and organize the house. She reported that it has subsequently been easier to clean, although at the resumption of therapy, she was doing virtually no housework. She reported that she felt she was relying too heavily on the services of Molly Maid.

Strategies relating to scheduling, energy conservation, work simplification and goal setting were developed to meet Mrs. Craner's needs. She began implementing these and has subsequently reported that she has been able to maintain her home independently. As a result, she has requested that Molly Maid services be phased out and has made arrangements for this to be totally discontinued by November 18, 1994. It is felt that, using the strategies developed, Mrs. Craner will be able to manage with only occasional housekeeping assistance, to complete heavy cleaning which she is no longer able to do.

Ms. Bedard recommended ongoing occupational therapy on a less frequent basis. However, Ms. Bedard's services were terminated at the end of December 1994. The Insurer also stopped paying for the Applicant's medication at this time. The Applicant reports that she is still unable to stand or walk for more than about 20 minutes, has difficulty with prolonged sitting, and cannot use the stairs repetitively. She stated that she has been doing her own housework since the Insurer terminated her housekeeping services. The Applicant testified that she is now able to vacuum, sweep, and wash the floors, clean the bathroom, make the beds, dust, prepare meals, wash the dishes, clean the kitchen counters and appliances, and do the laundry.

I accept that the Applicant has not returned to her pre-accident condition. She has modified her tasks: she uses a vacuum broom and twist mop provided by the Insurer, and takes frequent rest breaks while working. Moreover, she feels that she does not perform these tasks as often or as thoroughly as before the accident. She relies on pacing herself. The second floor of the house has been blocked off, to avoid the need to clean it. The Applicant still cannot complete the heaviest household work. For example, she sometimes relies on her husband to bring in heavy groceries from the car. She shops only for "absolute" necessities. Her husband does most of the driving.

Aside from housework, the Applicant testified that she attends church only sporadically, because she finds it difficult to sit in a hard pew. She has given up her VON work because of her memory problems. She has lost confidence for this work; she worries that she would do something wrong. She has still not resumed her difficult needlework projects, although she has returned to simpler knitting and crocheting. The sewing room has been closed up. The Applicant's children now bring food to family get-togethers. Sandra Craner and John Craner assist with the canning, while the Applicant does only what she can do sitting at the kitchen table.

John Craner and Sandra Craner corroborated the Applicant's testimony about her current condition. They testified that the Applicant spends most of her time on the couch, with a heating pad, watching TV or knitting, and she has little energy or initiative. The Applicant's symptoms and the condition of the house have deteriorated since the housekeeper's services were terminated. The Applicant's husband and daughter testified about her ongoing irritability.

The Applicant also testified that she is less active in caring for Jessica. However, Sandra Craner testified that she began living with her common-law husband in February 1993, and that recently she had not seen her mother as often as before. I do not accept that the Applicant’s injuries prevent her from caring for Jessica after December 1994.

An insured person is not precluded from receiving weekly benefits during the first 156 weeks, just because she tries to return to her pre-accident tasks or resumes her tasks on a part-time, short-term or modified basis. If she is unable to complete her tasks, or suffers a disabling aggravation of symptoms as a result of her attempts, she may still be entitled to receive weekly benefits. In this case, it seems clear that within months of the accident, the Applicant resumed some light housekeeping activities - preparing meals, washing dishes, doing laundry. However, the Applicant's claim that she has only recently resumed her heavier housework tasks is corroborated by her husband, her daughter, and Ms. Bedard, all of whom impressed me as generally candid in their testimony. Even the reports of Ms. Andich, the Insurer's consultant, do not suggest that the Applicant had resumed her heavy tasks by the summer of 1993. Moreover, none of the medical reports indicate that the Applicant has recovered to her pre-accident level of functioning. I find that as a result of the accident, the Applicant remained substantially unable to perform her pre-accident essential tasks until December 12, 1994³⁹.

After 156 weeks, an insured person is entitled to weekly benefits under section 13(8) only if her injuries continuously prevent her from engaging in substantially all her pre-accident activities - not just her pre-accident tasks. Although the Applicant continues to suffer accident-related symptoms, I am not satisfied that they to prevent her from engaging in substantially all her pre-accident activities after December 11, 1994.

Special award:

In addition to her claim for a special award because of the Insurer's denial of medical and rehabilitation benefits, the Applicant claims a special award on the ground that the Insurer acted unreasonably in relying on Ms. Andich's reports to terminate weekly benefits in May 1993.

An applicant is not entitled to a special award just because the arbitrator finds that the insurer was wrong to terminate benefits; the arbitrator must go on to find that the insurer's decision to terminate benefits was unreasonable. In this case, I am troubled that the Insurer terminated benefits without obtaining supporting medical evidence or confirming the Applicant’s activity level, and in spite of Ms.Andich's recommendation that the Applicant be assessed by a physiatrist. However, Ms. Andich's reports, when considered in isolation from her notes, did indicate that the Applicant had resumed many household tasks. I am not persuaded that the Insurer's decision to terminate benefits was arbitrary or capricious.

Expenses:

The Applicant was partially successful in her application. She is entitled to be reimbursed for her expenses incurred in the arbitration. If the parties are unable to agree on the amount owing, either party may contact me for an assessment of expenses; I remain seized.

Order:

1. The Applicant is entitled to weekly benefits until December 12, 1994, with interest under section 24 of the Schedule.

2. I have no jurisdiction to determine the Applicant's entitlement to medical and rehabilitation benefits.

3. The Applicant is not entitled to a special award.

The Applicant is entitled to her expenses incurred in the arbitration.

November 8, 1995

Nancy Makepeace

Arbitrator

Date

Appendix

Exhibit 1 -

Medical Brief, Volume 1

Exhibit 2 -

Medical Brief, Volume 2

Exhibit 3 -

Photograph of Sandra Craner's car

Exhibit 4 -

Letter, job description and Statements of Earnings from ReliaCARE Inc. to Applicant's counsel, dated January 5, 1995

Exhibit 5 -

Hospital Records

Exhibit 6 -

Ability to Perform Essential Homemaking Activities chart

Exhibit 7 -

Disability Screening Tool

Exhibit 8 -

Letter from Insurer to Applicant, dated May 5, 1993

Exhibit 9 -

Ann Fitzhenry Bedard's résumé

Exhibit 10 -

Letter from Insurer to Ann Fitzhenry Bedard, dated December 15, 1994

Exhibit 11 -

Letter from Insurer to Ann Fitzhenry Bedard, dated December 29, 1994

Exhibit 12 -

Letter from Applicant's counsel to Insurer, dated January 12, 1993

Exhibit 13 -

Letter from Applicant's counsel to Insurer, dated March 14, 1994

Exhibit 14 -

Susan L. Andich's curriculum vitae

Exhibit 15 -

Letter from Susan Andich to Applicant's counsel, dated January 29, 1993

Exhibit 16 -

Letter from Susan Andich to Applicant, dated March 30, 1993

Exhibit 17 -

Letter from Susan Andich to Applicant, dated June 3, 1993

Other documents:

1. Report of Mediator, dated September 27, 1993

2. Application for Appointment of an Arbitrator, dated March 14, 1994

3. Response by Insurer, dated May 6, 1994

4. Pre-hearing letter, dated August 8, 1994

5. Response by Insurer, dated August 16, 1994

Exhibit 1, Tab 6, p. 6.40

Footnotes

1. 1Prior to January 1, 1994, Ontario Regulation 672 was called the No-Fault Benefits Schedule. After that date it became the Statutory Accident Benefits Schedule -Accidents Before January I, 1994. In this decision, the term "Schedule" will be used to refer to Regulation 672.
2. 2Section 281(2) of the Act says that "No person may ... refer a matter to arbitration unless mediation has first been sought and has failed."
3. 3Section 13(1) of the Schedule
4. 4Section 13(8) of the Schedule
5. 5Exhibit 4
6. 6Norman Downs and Allstate Insurance Company, July 18, 1991, OIC File No. A-000064
7. 7Edgar Cowie and The Non-Marine Underwriters, Members of Lloyd's, London, England, March 9, 1993, OIC File Nos. A-001159
8. 8Chor Ting Lui and Wellington Insurance Company, April 28, 1993, OIC File No. A-001894
9. 9Lily Steele and Zurich Insurance Company, December 3, 1992, OIC File No. A-001024
10. 10For example, Clinical notes of Dr. Lamek, chiropractor, Exhibit 2, Tab 8, p. 8.02
11. 11Exhibit 4: Letter from Becky Jamieson, Payroll/Benefits Supervisor, with Statements of Earnings and Job Description attached
12. 12Medical-legal report of Dr. McLauchlin, January 23, 1995, Exhibit 2, Tab 8, pp. 8.40 and 8.41
13. 13Clinical notes and records, Exhibit 2, Tab 8, p. 8.05
14. 14Clinical notes and records, Exhibit 2, Tab 8, p. 8.62
15. 15Clinical notes and records, Exhibit 2, Tab 8, pp. 8.62-225; Confirmation letter to Susan Andich, March 3, 1993, Exhibit 1, Tab 6, pp. 6.01-09; Form 4 report, March 2, 1992, Exhibit 1, Tab 4, pp. 4.02-03; undated medical-legal report, received August 26, 1992, Exhibit 1, Tab 4, p. 4.01
16. 16Clinical notes and records, Exhibit 2, Tab 8, pp. 8.51-61, Discharge report, July 2, 1991, p. 8.60
17. 17Exhibit 5, Tab 6
18. 18Exhibit 3
19. 19According to Dorland's Illustrated Medical Dictionary (28th edition), "a membranous fold attaching various organs to the body wall. Commonly used with specific reference to the peritoneal fold attaching the small intestine to the dorsal body wall."
20. 20Exhibit 2, Tab 8, pp. 8.14 -16
21. 21Exhibit 1, Tab 2, pp. 2.01-2.05
22. 22Service Activation Request, Exhibit 1, Tab 6, p. 6.82. Introduction letter to the Applicant's counsel, January 29, 1993, Exhibit 15
23. 23Report dated February 18, 1993, Exhibit 1, Tab 6, pp. 6.10-17
24. 24The Applicant told Ms. Andich that she occasionally leaves the dishes if her back is sore; that although she takes the garbage outside, her husband carries it to the curb; that she "could likely do" the toilet; that she can carry a light basket of laundry downstairs, but not a heavy one; that when shopping for groceries, she asks a store employee to load her car; that when carrying parcels, she takes lighter loads and carries them close to her body; that she has a sore back while driving; that she had back pain when she tried garden work; and that Dr. Macdonald had recommended that Molly Maid's services be provided twice a week, rather than the once a week provided by the Insurer. Ms. Andich also admitted that the Applicant had told her that she had to relearn well known tasks - knitting/crocheting/sewing and cooking - from her daughter, that she had burned things because she would forget to turn the stove off, and that she spent "75% of the day" looking for lost items or trying to recall recent events and activities.
25. 25Confirmation letter, March 3, 1993, Exhibit 1, Tab 6, pp. 6.07-09
26. 26Exhibit 1, Tab 6, p. 6.05
27. 27Exhibit 1, Tab 6, p. 6.62
28. 28Service Plan Report, April 15, 1993, Exhibit 1, Tab 6, pp. 6.02-03; Exhibit 16
29. 29See Ms. Andich's notes of April 29, 1993 and May 7, 1993, and the File Closure report of June 4, 1993:
30. 30Letter terminating weekly benefits, dated May 5, 1993, Exhibit 8; letter closing rehabilitation file, dated June 3, 1993, Exhibit 17
31. 31September 16, 1993, Exhibit 1, Tab 1, pp. 1.10-22
32. 32Report dated January 3, 1994, Exhibit 1, Tab 6, pp. 6.18-25
33. 33Report dated May 25, 1994, Exhibit 1, Tab 6, pp. 6.31-38
34. 34Dr. Bierbrier, Exhibit 5, Tab 9
35. 35Report dated February 11, 1994, Exhibit 1, Tab 6, pp. 6.30-31
36. 36Report, June 8, 1994, Exhibit 1, Tab 2, pp. 2.06-08
37. 37Report, July 21, 1994, Exhibit 1, Tab 2, pp. 2.09-10
38. 38November 16, 1994, Exhibit 1, Tab 2, pp. 2.11-12
39. 39Both counsel assumed in their submissions that the 156 weeks referred to in section 13(8) expired on December 11, 1994.